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Silverman v. Bresnahan

Decided: May 20, 1955.

SAMUEL W. SILVERMAN, PLAINTIFF-RESPONDENT,
v.
CHRISTIANNA O. BRESNAHAN, DEFENDANT-APPELLANT



The opinion of the court was delivered by Freund, J.A.D.

Freund

The plaintiff, Samuel W. Silverman, is a licensed real estate broker who recovered a judgment of $1,000 against the defendant for commissions claimed to be earned for procuring a purchaser of certain premises known as the Saw Mill property. The defendant assigns as reversible error the trial court's charge to the jury over the defendant's objection that the duty of a broker to disclose to his principal that he represents other persons with adverse interests in the same transaction arises "only if the purchaser's promise to the plaintiff was made prior to the date on which defendant Bresnahan set the price" and "the defense will not avail unless she has shown that the buyer's promise preceded in time the date on which the price was fixed and the authorization given."

The defendant, Christianna O. Bresnahan, also owned a one-half interest in certain other real estate located in Ocean County, known as the Brick Yard property. On behalf of Mid-Stream Park Realty Co., Inc., from which he had

a general authorization to buy and sell land in Ocean County, the plaintiff offered the defendant $200 for her half-interest in the property, which comprised two parcent, one of 28 acres and the other of 32 acres. On August 1, 1952 he called upon the defendant at her home in New York and attempted to secure a quitclaim deed for her interest in the Brick Yard property. On the same occasion the plaintiff requested he be permitted to represent the defendant in the sale of the Saw Mill tract. On August 5, 1952 the plaintiff again called on the defendant, at which time he estimated her Saw Mill tract to be worth $10,000 and procured her signature to a written listing agreement for the sale of the tract for between $10,000 and $12,000, but not less than $10,000, and for the payment to him of a "10% commission at the time of the sale." After several telephone conversations and visits to the defendant, the plaintiff offered $10,600 for both tracts of land, together with any other land which the defendant had inherited from her father.

The defendant testified that a few days after signing the plaintiff's authorization she had sent him a telegram revoking it and that she had told him she would not take less than $12,000 for the property. She further testified that the plaintiff never presented to her a contract for the sale of the Saw Mill property, and that he never disclosed to her that he was acting on behalf of Mid-Stream Park Realty Co., Inc. in its purchase. This testimony was not denied by the plaintiff.

The complaint demands a commission of $1,000 predicated upon the defendant's written listing agreement of August 5, 1952 for procuring the Mid-Stream Park Realty Co., Inc., as the buyer of the Saw Mill tract. The defendant at the close of the plaintiff's case moved for a dismissal on the ground that the plaintiff "was dealing in a fiduciary capacity representing" both Mid-Stream Park Realty Co., Inc., and the defendant in the same capacity and at the same time, thus creating a breach of fiduciary duty to the defendant. The motion was denied.

The plaintiff testified as follows:

"Q. * * * Will you tell us a little bit more about the Midstream Park Realty, how you first became associated with it? A. Midstream Park Realty was a lawyer in Jersey City by the name of Schwartz and Mr. Pearlstein. They said, 'We would like to come down there and assemble some lands. We want to do some speculating, the Parkway, stuff like that.'

I said, 'I can acquire a lot of land for you.' Stuff was sold three, four dollars an acre. I said, 'When the Parkway comes it is going to be valuable.' I applied to assemble his lands. They had the corporation. And I agreed that anything I buy or get the commission -- sell to them, and anything I buy for them that they should pay me a commission to sell for them and I will get a commission.

Q. When was that company organized, to the best of your knowledge? A. Oh, I don't remember; sometime in 1952, maybe a few months before I think I spoke to this woman, maybe around June or July.

Q. Was that company organized for the purpose of acquiring these various lands around Ocean County? A. I don't know what he got the company for. They were going to buy land, but anything ...


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